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I-9 Practice Alert: employers can now accept expired green cards with qualifying I-797 extension notice

Today, the United States Citizenship and Immigration Services (USCIS) announced that starting in January 2021 they will replace the sticker that is currently issued to lawful permanent residents to extend the validity of their Form I-551, Permanent Resident Card (PRC or “Green Card”), with a revised Form I-797, Notice of Action. This revised notice will extend the validity of the green card for 12 months from the “Card Expires” date on the front of the document.

This is great news for lawful permanent residents, but it’s also impactful in the context of I-9 compliance too. Because according to today’s announcement, employers are now permitted to accept the combination of an expired green card along with this new I-797 notice as a List A document for I-9 purposes that does not require reverification.

As with all I-9 related news, HR and hiring managers should update their own internal standard operating procedures and instructions to account for this new document combination. To assist in this endeavor, below are answers to questions that may arise from this new process.

Questions and Answers about new I-797 Receipt for Pending Green Cards

(1) What is changing in the green card renewal process?

Beginning in January 2021, individuals applying to renew their green card will receive a revised Form I-797 receipt notice for the I-90 application, which includes the following language:

This notice provides evidence of your lawful permanent resident status for 12 months from the expiration date on your Form I-551, Permanent Resident Card (also known as a Green Card). You remain authorized to work and travel. This notice, presented with your expired Permanent Resident Card, is evidence of your status and work authorization.

Previously, green card applicants would receive an “extension sticker” at their biometrics appointment, which extended the validity of the green card (sample below).

Notably, the USCIS indicated that the new I-797 extension notice when presented with an expired Permanent Resident Card, is acceptable for I-9 purposes as a List A document (showing both identity and work authorization). This is an important update, as historically, the USCIS has instructed employers to treat expired permanent resident cards presented with a receipt notice as a List C document.

(2) Why is the USCIS making this change?

In fiscal year 2020, the average processing time for an I-90, application to replace permanent resident card, increased to 7.6 months. In light of these delays, USCIS wants to ensure that applicants have documentation needed for identity, employment authorization and authorization to return to the US following temporary foreign travel.

(3) How quickly will green card applicants receive the I-797 receipt notice?

According to the USCIS announcement, applicants who file Form I-90 to replace an expiring Green Card will receive the revised receipt notice in the mail approximately 7-10 days after USCIS accepts their application.

USCIS noted, however, that applicants who have already been scheduled for a biometrics appointment as of the January 2021 announcement will not receive a revised notice, and will instead receive the extension sticker as usual.

(4) How should the I-9 be completed when an employee presents an expired green card with the I-797 receipt notice?

According to I-9 Central, employers should enter the information from this document combination in Section 2, under List A as follows:

  • In the Document Number field, enter the card number provided on the expired PRC.
  • In the Expiration Date field, enter the date that is 12 months from the “Card Expires” date on the expired PRC.
  • In the Additional Information box, write “PRC Ext” and the I-90 receipt number from the Form I-797.

In addition, employers who retain copies of documents should retain copies of both the PRC and Form I-797 with the employee’s Form I-9.

(5) Do I need to reverify the I-9 after the 12-month period?

No, the USCIS has indicated that employers may not reverify Lawful Permanent Residents who present this document combination.

It is important to note, however, that the M-274 handbook still indicates that employers should reverify employment authorization when they receive “an expired Form I-551 with a Form I-797, Notice of Action, that indicates USCIS has extended the card’s validity.” Presumably, this instruction will now only apply to I-797 extension notices for conditional permanent residents (who file either an I-751 or I-829) to remove conditions). We have sent an inquiry to USCIS for clarification on those points.

But with respect to this new I-797 for an I-90 application, HR and hiring managers should be especially careful with this rule – as conducting an unnecessary reverification is generally considered to be an unfair documentary practice – an infraction that is increasingly investigated (and prosecuted) by the Department of Justice to ensure that employers are not unlawfully discriminating against employees based on their citizenship, national original, or immigration status.

(6) How does this document combination affect E-Verify?

Although not mentioned in their announcement, E-Verify participating employers should create cases using this document combination within 3 days after the employee’s start date as usual.

Questions?

Please feel free to drop us a line if you have questions regarding today’s I-9 announcement or would like additional information on Guardian, our electronic I-9 and E-Verify solution.


About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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